THE VANISHING TRIAL
Running Time: 38 minutes
Produced by FAMM Foundation
Release date: June 5, 2020
Imagine you’re charged with a crime. Now you must choose between pleading guilty and receiving a shorter sentence–or going to trial and risking decades behind bars.
“The Vanishing Trial” focuses on four individuals who were forced to make that excruciating choice. Each was threatened with a “trial penalty,” the term used to describe the substantially longer prison sentence a person receives if they exercise their constitutional right to trial instead of pleading guilty. We see how the trial penalty has led to the shocking disappearance of one of the most fundamental individual rights and the explosion in America’s prison population.
Throughout the film, we hear the perspectives of national experts, including former federal judges and prosecutors, criminal defense lawyers, constitutional law experts, and criminal justice reform advocates.
“The Vanishing Trial” was produced by FAMM producer/director Wynette Yao and cinematographer/editor Travis Edwards. Yao is an Emmy-nominated producer/director who has worked for National Geographic, Discovery, and other major networks. Edwards is an award-winning cinematographer/editor who has worked on a wide range of documentaries and features.
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“‘The Vanishing Trial’ exposes the dirty little secret of the criminal justice system that prosecutors don’t want you to know about: the trial penalty. As a former prosecutor, I know that the trial penalty real and that it poses a grave threat to our constitutional right to trial. ‘The Vanishing Trial’ should educate – and frighten – Americans, and spark a movement to reclaim one of our most fundamental rights.” ~Former United States Attorney Brett Tolman
“Finally a film that dismantles the myth that everyone accused of a crime gets their day in court. The Vanishing Trial lays bare the lie. When more than 90% of people accused of crimes ‘volunteer’ to plead guilty rather than exercise their Constitutional right to a trial—it’s not because they’re guilty. It’s because our system is so rigged that most don’t meaningfully have any other choice. The Vanishing Trial is a sobering wake-up call to the structural failures of a system that provides very little justice. I hope America is listening.” ~Shana-Tara O’Toole, Founder + President, Due Process Institute
“This gut-wrenching documentary may be the single most important contribution to criminal justice reform ever created. In just 40 short minutes, it lays bare the fundamental rot at the heart of America’s criminal justice system and drives home the appalling human toll of America’s addiction to mass incarceration.” ~Clark Neily, Vice President for Criminal Justice, Cato Institute
“This film makes devastatingly clear that prosecutors are destroying countless lives in their quest to extract guilty pleas at any cost. This isn’t about justice or public safety. It’s about grinding people through as quickly as possible so prosecutors don’t have to go through trials. In a world with mandatory minimums, this gives prosecutors the ultimate power to decide people’s fates, and this film shows that power is often used to destroy people and their families. Judges become ministerial messengers — just delivering the sentences that the prosecutors selected with their charges. It’s an embarrassment to our country and the Constitution that this happens every day in America. The first step to ending it is to abolish mandatory minimums and the second is to create meaningful oversight over prosecutors to stop them from penalizing people who just want the rights the Constitution gives them.” ~Rachel E. Barkow, Faculty Director, Center on the Administration of Criminal Law, NYU School of Law
“The Vanishing Trial is an important and fearless film that implores its viewers to remember our humanity within the framework of the criminal justice system….The Vanishing Trial will be a source of education and motivation against a bloated prison system for generations to come. These stories are excruciating and disheartening to watch but a lifeline for those going through it and a catalyst for change.” — Rudy Valdez, Academy award-winning director
Under the current system of unfettered prosecutorial power, there is no check on the vindictive egos of those who wish to punish people for insisting upon their constitutional right to trial. This is a true indictment of this country’s ailing criminal justice system. The Vanishing Trial shines a very necessary and bright light on heartbreaking stories of real people whose lives were devastated by the trial penalty and explores how we can create impactful change. — Brittney Barnett, Attorney and Co-Founder of Buried Alive
Trial Penalty: The Basics
What is the trial penalty?
The trial penalty is the substantial difference in the prison sentence that is offered as part of a plea deal and the sentence a person receives if they lose at trial.
Here’s an example from the documentary: Chris Young was initially told that if he pleaded guilty, he would have to serve 14 years in prison. After he decided to go to trial, he was convicted of charges that carried a life sentence, which he is still serving. The difference between what he could have received by pleading guilty – 14 years – and his ultimate sentence after trial – life without parole – was his trial penalty.
What causes the trial penalty?
A number of factors contribute to the trial penalty. In his Introduction to the National Association of Criminal Defense Lawyers’ 2018 report on the issue, former federal judge John Gleeson listed the three main factors:
- The growth of mandatory minimum sentencing laws. These one-size-fits-all punishments allow prosecutors to strong-arm guilty pleas and severely punish anyone who chooses to go to trial.
- Harsh sentencing guidelines. At the federal level and in many states, sentencing guidelines set forth harsh sentencing ranges, which, like mandatory minimums, coerce people into pleading guilty.
- Go-along judges. Too many judges agree to go along with prosecutors and impose harsh sentences when defendants “demand” their right to trial and lose, rather than impose a fair sentence based on their culpability
What are the costs of the trial penalty?
The trial penalty has many costs, including:
- Longer sentences. People can end up serving many more years in prison if they exercise their constitutional right to trial.
- Loss of an important constitutional right. Today, less than 3 percent of federal and state defendants go to trial. Americans are forfeiting their fundamental right to go to trial and being coerced into pleading guilty because the penalty for exercising their right is so great.
- Innocent people plead guilty. The risk of getting an extra decade or more in prison convinces some innocent people to plead guilty. The National Association of Criminal Defense Lawyers found that of 354 individuals exonerated by DNA analysis, 11 percent had pleaded guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty.
- Loss of checks and balances. Jury trials are important because they enable the judicial branch (judges) and citizens (jurors) to check the power of prosecutors. If they are not forced to make cases at trial, prosecutors are free to overreach and start charging more conduct as criminal.
Why are prosecutors in general interested in persuading people to take guilty pleas?
Guilty pleas are considered an effective way to keep the courts from being overwhelmed by too many cases. Trials are expensive because they require staff resources and time. Most agree that people who plead guilty, take responsibility, and avoid putting the government through the cost of a trial deserve some incentive in the form of a shorter sentence. Defendants often benefit from plea agreements. The problem arises when additional charges or sentencing enhancements are added when someone chooses to go to trial.
Why do people go to trial if it’s so risky?
Many people go to trial because they believe they’re innocent and want to exercise their constitutional right to a trial by jury. Others believe they are guilty of a lesser crime than that of which they’re charged. Often, people do not understand that they’re at risk of a trial penalty, either because they’re not in a state of mind to grasp the situation or their counsel has not explained it accurately.
What role does race play in the trial penalty?
As shown in the “Vanishing Trial,” black Americans frequently are offered worse plea deals than similarly situated whites and therefore are more likely to go to trial and get saddled with a longer sentence, or trial penalty. “The Vanishing Trial,” seeks to highlight different types of state and federal cases including drugs, white collar crime, and violent crimes to show how it is applied in a variety of situations. The stories selected reflect that intentionality.
How to Eliminate the Trial Penalty
All Americans have a constitutional right to a fair trial, but that right is disappearing. More than 97 percent of criminal convictions today are secured by plea bargains, thanks, in part, to the trial penalty. It’s time to eliminate the trial penalty and restore our right to trial. Lawmakers, prosecutors, and judges all have a role to play.
1. Lawmakers: Repeal mandatory minimum sentencing laws.
Prosecutors use the threat of long, mandatory sentences to coerce people into pleading guilty. Removing this threat will help restore our right to trial. Urge your federal and state lawmakers to repeal mandatory minimum sentences. Lawmakers should also establish strict limits on how much longer a sentence a prosecutor may seek after a plea offer is rejected.
2. Prosecutors: Stop penalizing people who exercise their right to trial.
Prosecutors shouldn’t need to threaten people with decades in prison for exercising their right to trial. If you live in a state that elects district or county attorneys, you can commit to supporting only candidates who promise not to penalize people who go to trial.
3. Courts: Get involved in plea-bargaining negotiations.
Because our justice system has moved from trials to plea bargains, the courts should require mandatory plea-bargaining conferences that are supervised by a judicial officer who is not involved in the case, unless the defendant waives that opportunity.
More reading on the trial penalty:
- The Trial Penalty: The Sixth Amendment Right to Trail on the Verge of Extinction and How to Save It – report from the National Criminal Defense Lawyers.
- The Trial Penalty, Clark Neily, vice president for criminal justice, Cato Institute
- When the Innocent Plead Guilty – The Innocence Project
- “Most Plea Bargains are Unconstitutional,” Alan Dershowitz, Wall Street Journal, 11/5/2019
- Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, Mississippi Law Journal, Vol. 84, No. 5, 2015
- “The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End” by Norman L. Reimer and Martín Antonio Sabelli
- “Weaponizing Justice: Mandatory Minimums, the Trial Penalty, and the Purposes of Punishment” by Mary Price (FAMM General Counsel)