The Trial Penalty

In 2016, 97.3% of defendants in the federal criminal justice system conceded guilt. This means that less than 3% of defendants exercised their constitutional right to trial. The vast majority of a criminal defense attorney’s time is dedicated to plea bargaining – we negotiate with prosecutors to reach an acceptable outcome for clients. Plea negotiations are an important tool for defendants. However, when a defendant wishes to go to trial, is he or she punished for doing so?

The “trial penalty” is the discrepancy between the sentence offered during plea negotiations and the sentence a defendant faces after trial. Often, defendants going to trial will receive a much harsher sentence compared to what the sentence might have been following a guilty plea. In 2015, in most primary offense categories, the average post-trial sentence a defendant received was more than triple the average post-plea sentence. A majority of the time it is in the defendant’s best interest to accept a plea. But it is fundamentally unfair that contesting evidence and maintaining innocence results in a harsher sentence.

During the plea bargaining process, in exchange for a defendant’s guilty plea, the prosecutor may agree to forgo certain charges or recommend (or not oppose) a certain sentence. However, a prosecutor also has the power to add charges or recommend increased sentences. Because plea bargaining takes place outside of the power of the court, judges have no oversight. As a result, prosecutors are free to exercise unchecked power in plea negotiations.

One way in which prosecutors can misuse this power is in bringing elevated charges against a defendant. Prosecutors have total discretion to decide what to charge. For example, because multiple charges can cover identical conduct, prosecutors may charge a defendant under a statute carrying life in prison, or under a statute carrying only 10 years. This gives prosecutors tremendous leverage over defendants. The only way to contest the adequacy of charges is to go to trial. However, because so many defendants are unable or unwilling to risk a trial due to things like harsher sentences and financial difficulties, they generally go uncontested.

So, is there a solution to this imbalance of power between prosecutors and defendants and how can we ensure that defendants are not punished for exercising their right to trial? The National Association for Criminal Defense Lawyers has some solutions. Among them, the NACDL has called for judicial oversight of plea negotiations in the form of mandatory plea-bargaining conferences supervised by a judicial officer. Additionally, there should be safeguards in place to ensure that a defendant is not punished for going to trial. Post-trial sentences should not increase for reasons other than a denial of credit for acceptance of responsibility (if appropriate); obstruction of justice (if proved); and the development of facts unknown before trial.”

Because trials in the criminal justice system are infrequent, it is difficult to come by attorneys with real, hardened trial experience. This is why you should call the Law Office of John Freeman. Hire an attorney who knows how to plea bargain, but is also not afraid to be a part of the 3% that fight every step of the way for their client’s innocence and freedom.