Trial penalty

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In United States criminal procedure, the trial penalty is the difference between the smaller sentence offered to a defendant in a plea bargain prior to a criminal trial and the larger sentence the defendant could receive if they elect to go to trial. [1] [2] It sits at the center of a legal debate over whether trial penalties abridge defendants' Sixth Amendment right to trial.

Contents

Background

In a plea bargain, a criminal defendant waives their right to trial and agrees to plead guilty to a lesser charge than would be brought against them at trial or agrees to plead guilty to the original charge in exchange for a sentence which is less than the maximum possible. [3] [4] Plea bargaining is pervasive in the United States: most criminal defendants accept a plea deal rather than go to trial, [5] and at the federal level only 2% of defendants elect to go to trial. [6] The constitutionality of plea bargaining has been repeatedly affirmed by the United States Supreme Court, as in Brady v. United States , provided that the defendant enter into the plea deal voluntarily. [7]

Definition

The "trial penalty" is the "discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial". [8] Many plea bargains require that the defendant waive certain constitutional rights, such as the right to challenge unlawfully procured evidence and the right to appeal; this is also sometimes considered part of the "trial penalty". [8] [9]

Criticism

Critics argue that the trial penalty has the effect of depriving defendants' of their Sixth Amendment right to "a speedy and public trial". [10] The lawyer Alan Dershowitz argues that trial penalties have rendered most plea bargains unconstitutional because they amount to a punishment for exercising the right to trial, and any right is abridged "when you're punished for exercising it". [11] Indeed, a statistical analysis of federal cases shows that defendants who exercise their right to trial are penalized with sentences 64% longer than they would have received had they accepted a plea deal. [12] The author of the analysis similarly argues that this makes trial by jury "less of a right and more of a trap for fools". Human Rights Watch also stresses the discrepancy between plea sentences and trial sentences in their report on trial penalties in drug cases: "the trial penalty’s effectiveness at securing plea agreements is purchased at the cost of disproportionate and unjust sentences for those who exercise their right to trial". [2]

The National Association of Criminal Defense Lawyers (NACDL) argues that trial penalties are "now so severe and pervasive that it has virtually eliminated the constitutional right to a trial". [1] It contends that trial penalties impose such harsh penalties on electing to go to trial that they amount to coercing defendants to plead guilty—which renders such plea deals unconstitutional. [8] For instance, they argue that the power of a prosecutor to reduce a multi-decade prison sentence that could be faced at trial to several years in a plea bargain renders "any choice the defendant had in the matter...all but eliminated". [8] They further point out that "the pressures defendants face in the plea bargaining process are so strong even innocent people can be convinced to plead guilty to crimes they did not commit", which they argue casts doubt "on the assumption that defendants who plead guilty do so voluntarily". [8]

The NACDL also argues that trial penalties have resulted in the system of trial by jury laid out in the United States Constitution to be effectively replaced by a system of plea bargains. [8]

Related Research Articles

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A plea bargain is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

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Lafler v. Cooper, 566 U.S. 156 (2012), was a United States Supreme Court case in which the Court clarified the Sixth Amendment standard for reversing convictions due to ineffective assistance of counsel during plea bargaining. The Court ruled that when a lawyer's ineffective assistance leads to the rejection of a plea agreement, a defendant is entitled to relief if the outcome of the plea process would have been different with competent advice. In such cases, the Court ruled that the Sixth Amendment requires the trial judge to exercise discretion to determine an appropriate remedy.

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References

  1. 1 2 "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It". National Association of Criminal Defense Lawyers. 10 July 2018.
  2. 1 2 "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty". Human Rights Watch. 5 December 2013.
  3. Devers, L. (2011). Plea and Charge Bargaining. U.S. Department of Justice Bureau of Justice Assistance. Retrieved from https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf
  4. "Criminal Cases". United States Courts. Administrative Office of the U.S. Courts.
  5. Yoffe, Emily (September 2017). "Innocence is Irrelevant". The Atlantic. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal.
  6. Gramlich, John (11 June 2019). "Only 2% of federal criminal defendants go to trial, and most who do are found guilty". Pew Research Center.
  7. "Plea bargain". Legal Information Institute. Cornell Law School.
  8. 1 2 3 4 5 6 National Association of Criminal Defense Lawyers. (2018). The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Retrieved from https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-extinction-and-how-to-save-it.pdf
  9. Neily, Clark (9 February 2018). "The Trial Penalty". The Cato Institute.
  10. "Bill of Rights Transcript". Archives.gov. Retrieved 2011-06-09.
  11. Dershowitz, Alan M. (5 November 2019). "Most Plea Bargains Are Unconstitutional". The Wall Street Journal.
  12. Kim, Andrew Chongesh (26 July 2015). "Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study". Mississippi Law Journal. 84 (5).