Trial penalty

In the United States, the trial penalty refers to 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. It sits at the center of a legal debate over whether trial penalties abridge defendants' Sixth Amendment right to trial.

Background

The "trial penalty" is in reference to the use of plea bargaining in the United States. 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 less-than-the-maximum sentence. Plea bargaining is a pervasive practice in the United States: most criminal defendants accept a plea deal rather than go to trial, and at the federal level only 2% of defendants elect to go to trial. The constitutionality of plea bargaining has been repeatedly affirmed by the United States Supreme Court, such as in the case Brady v. United States, provided that the defendant enter into the plea deal voluntarily.

Definition

The "trial penalty" refers to 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". The requirements in many plea bargains that the defendant waive certain constitutional rights, such as the right to challenge unlawfully procured evidence and the right to appeal, are also sometimes considered as part of the "trial penalty".

Criticism

Critics argue that the trial penalty has the effect of depriving defendants' of their Sixth Amendment right to "a speedy and public trial". Prominent lawyer Alan Dershowitz argued in The Wall Street Journal, for instance, that trial penalties have rendered most plea bargains unconstitutional for the simple reason that they amount to a punishment for exercising the right to trial, and any right is abridged "when you're punished for exercising it". Legal scholar Andrew Chongseh Kim emphasizes this point that trial penalties amount to punishment, concluding in his empirical analysis of the federal court system that federal defendants who exercise their right to trial are penalized with sentences 64% longer than they would have received had they accepted a plea deal. He 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. They state that "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".

One of the most expansive reports on the trial penalty is a report published by the National Association of Criminal Defense Lawyers (NACDL), which argues that trial penalties are "now so severe and pervasive that it has virtually eliminated the constitutional right to a trial". The NACDL 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. 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". 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".

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.