The “Trial Penalty”

In 2015, the House Judiciary Committee introduced several bills aimed at reforming the criminal-justice system in the United States. Among other things, the reforms seek to change the mandatory sentencing rules. However, one important issue that the bills do not address is the practice whereby judges impose severe sentences when a trial results in a conviction. In this instance, “severe” means greatly in excess of what the defendant was offered in exchange for a guilty plea prior to trial. This phenomenon, well known to those who practice in the criminal courts, is sometimes referred to as the “trial penalty.”

According to the Wall Street Journal, “[A] 2013 Human Rights Watch study found that the average federal drug sentence for defendants who proceeded to trial in 2012 was three times longer—an increase of 10 years—than for defendants who pleaded guilty. In that study, a federal judge in New York described the sentences defendants face if they reject plea offers as “so excessively severe, they take your breath away.” – The Injustice of the Plea-Bargain System, Wall Street Journal, Dec 3, 2015.

Anecdotally, I once represented a client who was charged with 3rd offense drunk driving (OUI) and negligent operation of a motor vehicle. My client rejected a plea offer of about 5 months in jail, and went to trial. The jury found my client not guilty of the OUI, but guilty of negligent operation. Even though the facts (some moderately dangerous driving, but no accident) would have supported sentencing my client to the mandatory 14 days incarceration called for by statute, the judge sentenced him to 24 months in jail, effectively penalizing him for taking the OUI case to trial – and being found not guilty!

On a daily basis, the trial penalty is explained to defendants by their attorneys, and it frequently weighs heavy in any decision whether to demand that the government prove the defendant guilty, or to simply plead guilty and receive a lenient sentence. I myself have explained the possibility of a trial penalty to probably hundreds of clients over the years, as to fail to apprise the client of the very real possibility of “getting hammered” by the judge after trial would be irresponsible. Not surprisingly then, according to the U.S. Sentencing Commission, approximately 95% of convictions in state courts are the result of guilty pleas, as opposed to trial verdicts.

Although the U.S. Supreme Court has upheld plea bargaining as constitutional, it expressed “serious doubts” about the lawfulness of the system if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.” In light of several cases in which a defendant who pleaded guilty to avoid a trial penalty was later exonerated, for instance by DNA evidence, the legislature should act to reform the plea bargaining system. Alternatively, perhaps it is time for someone to challenge the system in court, and perhaps get their case before the Supreme Court.

Attorney Kevin D. Quinlan
Uxbridge, Worcester County, Massachusetts

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