The jury tax

The law states that a criminal defendant cannot be penalized merely for exercising a constitutional right, such as a jury trial.  But as defense lawyers know, penalties can sometimes be harsher if a defendant passes on a plea deal and instead proceeds to trial, and loses.  This isn’t always the case; in fact, because criminal statutes today cover such a broad range of innocuous behavior, it’s sometimes better for a defendant to have a trial, even if he ends up losing.  This way, the judge can see just how mitigated the “crime” actually was, and might take that into account when pronouncing sentence.  But the risk of receiving a harsher penalty for going to trial and losing—also known as the jury tax—is alive and well, at least in Wisconsin.

A prime example of the jury tax can be seen in State v. Strupp, where the defendant lost at jury trial and then received a twenty year sentence.  When pronouncing sentence, the trial judge relied in part on the defendant’s perjurous testimony at trial—after all, the jury rejected his theory of defense and convicted him, so the defendant must have lied on the witness stand.  But even the prosecutor had to jump in and correct the judge: this defendant had remained silent, and never even testified at trial.  (Which makes one wonder: what was the judge doing during the trial?)  The judge then slightly changed his approach and said that he was instead relying on the defendant’s bogus defense of self-defense.  This time, the defense lawyer had to jump in and correct the judge, reminding him that self-defense was his (the lawyer’s) trial strategy, which is a matter left up to the lawyer and is outside the defendant’s control. 

The court nonetheless imposed a twenty year sentence, and on appeal the defendant argued that this was an impermissible jury tax; in other words, the judge was punishing him merely for exercising his constitutional right to put the state to its burden of proof at trial.  The appellate court, however, took a different view.  Even though “the [trial judge] was twice corrected by the prosecutor and defense attorney” the appellate court bent over backwards to uphold the sentence: “we read the court's remarks in total as revealing its reliance, not on any specific assertion about intent by Strupp, but instead on Strupp's general failure to take responsibility.”

Now I see.  It all boils down to “taking responsibility.”  But isn’t failing to take responsibility the same thing as going to trial?  Imagine if the defendant had told the trial judge, after losing at trial, that he was very sorry and takes full responsibility for his actions.  Would the judge have been impressed?  Of course not.  The judge would have rejected this, and would have pointed out that if the defendant really took responsibility, he wouldn’t have put everyone through a jury trial. 

In fact, the only action that could possibly be construed as taking responsibility is taking a plea deal.  So when the appellate court says that a trial judge can dole out a harsh sentence because the defendant failed to take responsibility, that’s just another way of saying that the trial judge can punish a defendant for going to trial because having a trial is, of course, the opposite of taking responsibility. 

And this leads to an interesting sub-issue.  Although having a trial is the very definition of not taking responsibility, the inverse fails to hold true; that is, taking a plea deal is not the definition of taking responsibility.  Why?  Because when defendants take plea deals, there is nearly always some concession by the state, e.g., if a defendant pleads to three counts, the state will dismiss one count.  And when defendants take such deals, I’ve seen judges flat-out reject defendants’ claims that they are taking responsibility for their actions.  Why?  Because, the judges say, these defendants are not really taking responsibility, but instead are merely acting out of self-interest; that is, they are taking plea deals only to get reduced charges or other concessions from the state.

This all leads to the question: how can a defendant truly take responsibility?  I think I have the answer: plead straight-up to every charge in a multi-count complaint (even when all charges stem from a single act of alleged wrongdoing), repent profusely, and ask for consecutive sentences of the maximum penalties that our state legislature, in all its wisdom, permits. 

On second thought, I prefer the jury trial, tax and all.